Abstract

http://ssrn.com/abstract=2403019
 


 



Cable Television and the Aereo Case – Then and Now


Peter S. Menell


University of California, Berkeley - School of Law

David Nimmer


Irell & Manella LLP

February 28, 2014

UC Berkeley Public Law Research Paper No. 2403019

Abstract:     
The Supreme Court will soon confront whether Aereo’s service – which affords subscribers access to over-the-air television signals through the use of dime-sized, customer-specific antennas and remote digital video recorders – infringes the Copyright Act’s public performance right. In endorsing the Second Circuit’s decision holding that Aereo does not infringe, some advocates have suggested that such disruptive digital age technology is well beyond what Congress contemplated when it drafted the “Transmit Clause” of the public performance right nearly 50 years ago. Our exploration of the history indicates otherwise.

The drafters of the Copyright Act of 1976 had greater foresight than the Second Circuit recognized. As the 1965 Supplementary Report of the Register of Copyrights emphasizes, “it is becoming increasingly apparent that the transmission of works by nonprofit broadcasting, linked computers, and other new media of communication, may soon be among the most important means of disseminating them, and will be capable of reaching vast audiences. Even when these new media are not operated for profit, they may be expected to displace the demand for authors’ works by other users from whom copyright owners derive compensation.”

The following year, Congress explained its intent in crafting the public performance right to cover transmissions of performances “whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.” Its 1966 report notes that liability would arise “whenever the potential recipients of the transmission represent a limited segment of the public, such as...the subscribers of a community antenna television service.” It noted that the “same principles apply...where the transmission is capable of reaching different recipients at different times, as in the case of sounds or images stored in an information system and capable of being performed or displayed at the initiative of individual members of the public” – language that comes eerily close to describing Aereo’s service.

It is difficult to imagine the drafters not considering Aereo to fall comfortably within their conception of a public performance right, especially when considered in light of the drafters’ stated intention that the statute be interpreted broadly so as protect against the “real danger” of confining the “scope of the author’s rights on the basis of the present technology” in the face of even “unforeseen technical advances.”

When Congress’s development of the retransmission compulsory license is added to the mix, the case for liability becomes airtight. After 1966, the governing law affecting cable television evolved considerably. After the Supreme Court determined that cable television services do not implicate the copyright owner’s rights, Congress added Section 111 as part of its stated intention to legislatively reverse the Court’s Teleprompter and Fortnightly rulings. This provision establishes a detailed compensation regime whereby cable services are charged for sending over-the-air signals to their subscribers. Retransmission of those signals absent compliance with the provisions set forth in Section 111 or authorization from the copyright owner constitutes copyright infringement. Over the ensuing decades, Congress has cemented this proposition time and again.

When taken together, the text, structure, and legislative history of the 1976 Act establish that Congress intended its public performance right to reach the Aereo service.

Number of Pages in PDF File: 45

Keywords: copyright, public performance right, transmit clause, statutory interpretation, technological change

working papers series





Download This Paper

Date posted: March 2, 2014  

Suggested Citation

Menell, Peter S. and Nimmer, David, Cable Television and the Aereo Case – Then and Now (February 28, 2014). UC Berkeley Public Law Research Paper No. 2403019. Available at SSRN: http://ssrn.com/abstract=2403019 or http://dx.doi.org/10.2139/ssrn.2403019

Contact Information

Peter S. Menell (Contact Author)
University of California, Berkeley - School of Law ( email )
215 Boalt Hall
Berkeley, CA 94720-7200
United States
David Nimmer
Irell & Manella LLP ( email )
1800 Avenue of the Stars, Suite 900
Los Angeles, CA 90067
United States
310-277-1010 or (310) 203-7079 (Phone)
Feedback to SSRN


Paper statistics
Abstract Views: 724
Downloads: 152
Download Rank: 115,118

© 2014 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo8 in 0.297 seconds